1. In what ways is the freedom of expression valuable to a constitutional democracy?
2. How has the balancing test used to resolve free speech cases evolved over time? What is the current standard for such cases?
3. How do the terms vagueness, overbreadth, public forum, nonpublic forum, ban, and regulation relate to free speech jurisprudence?

 

In what ways is the freedom of expression valuable to a constitutional democracy?

Freedom of expression are of the most fundamental freedoms in a democratic society as it ensures public participation in policy making which is the bedrock of a democratic society. Freedom of expression ensures that beliefs, political ideas, preferences, and societal opinions are all welcome in a country which adopts a constitutional democracy. It is important to note that Freedom of expression is the broad concept which includes other freedoms such as freedom of religion, freedom of speech, freedom to redress of grievances against the government. If you study the freedoms aforementioned, these all pertain to individual autonomy is a democratic state where a citizen is able to express ideals without fear of government restraint and punishment.

Freedom of expression is important as it allows the citizens to practice their beliefs without fear of prosecution. A constitutional democracy is one which offers protection of fundamental freedoms such as religion to its society. Freedom of expression ensures that all religions are welcome and allowed in a democracy so long as this expression does not bring any harm to society. This concept is the basis on why constitutional democracies are sectarian states as the freedom of expression implies the prohibition of the establishment of religion by the state. This enables the practice of all moral and lawful religion in a democratic society which is key in maintaining harmony in diverse countries such as America.

Freedom of expression is also key in protecting the freedom of speech. Speech is an inherent human right which allows individuals to express their thoughts on practically any matter. Freedom of speech finds most significance when paired together with the freedom to express grievances against the government. Since the constitution is considered to be the mandate of the people, then the people should in a democratic state should have the most say in how policies, laws, and initiatives are carried out of the government. The freedom of expressions maintains the need for accountability of the government and public officials to the constituents to serve. The ability of citizens to express their criticisms, dismay, and demands to the government through any form of speech creates a participative democracy wherein ordinary people have a legitimate influence to how the government runs the state.

Hence, it can be said, that the Freedom of Expression is the foundation for the exercise of all other freedoms given in a democratic country.

How has the balancing test used to resolve free speech cases evolved over time? What is the current standard for such cases?

The balancing test or the "Balancing of Interest Test" is one of the earliest standards in determining the constitutionality of an act which infringes on freedom of speech. On its inception, the balancing test required that infringement of speech can only be justified when there exist a governmental interest that outweighs the rights of citizens to exercise their freedom of speech. It is worthy to note that the standard of "government interest" is a low threshold in legal parlance. This only meant that any and all governmental interest may be used to suppress speech. Hence, at its early days, the balancing test was criticized to be a circumvention for the government to infringe on the freedom of speech of its citizens as it can arbitrarily claim that a government policy, law, or program is within the interest of the government and any speech that runs counter to it may be justifiably suppressed.

Hence, the US Supreme Court modified the standards under the Balancing of Interest Test in ruling that in order for an infringement on speech to be valid, the act of the government through policy or law should be considered as a "compelling state interest" which imposes a higher threshold for when government may suppress speech. The display of this principle was used in the landmark case of Dennis v. United States where the freedom of speech of individuals who evoke sentiments for the overthrow of the government can be limited under the Smith Act.

Right now, the threshold of suppressing speech was set even higher with the standard currently used being the "Clear and Present Danger" rule. Under this doctrine, speech may only be suppressed when there is a compelling state interest and the suppression of speech is vital in avoiding a clear, imminent, and present evil which the government seeks to address. Only in these cases shall the Freedom of Expression be constitutionally and validly suppressed.

How do the terms vagueness, overbreadth, public forum, nonpublic forum, ban, and regulation relate to free speech jurisprudence?

Vagueness doctrine in free speech jurisprudence presents that any statute shall be considered void and unenforceable it the terms and provisions of the law are too vague for an average citizen to comprehend or the terms used in the statute cannot be strictly defined by clear standards. Thus any law which is considered vague shall be nullified and shall be considered "void for vagueness".

Overbreadth doctrine in jurisprudence is a facial challenge on laws involving the freedom of expression which holds that a law which punishes a constitutionally protected speech, conduct, or behavior shall be invalid even when it also prohibits a valid governmental interest. In these cases, the laws is sweeping as it does not only prohibit a legitimate government interest but on its way it also affects and infringes upon the fundamental freedoms under the First Amendment.

Public Forum or Non Public Forum is a tool utilized by US courts in determining whether the restriction of speech on government property is constitutional or not. This determines whether spaces are Public Forums where the exercise of free speech cannot be curtailed or Non public Forums where the exercise of free speech can be validly prohibited. An example of its use is in the case of Southeastern Promotions v. Condrad where the court found that the prohibition of the production of a rock concert in public facilities were unconstitutional as these public places are considered public forums which were meant for free speech.

Ban or Regulation in free speech jurisprudence refers to the degree of infringement the government adopts against any speech. A ban implies an absolute prohibition of a determined speech. An example of a constitutional ban of speech is the banning of speech which promotes the overthrow of the government under the Smith Act. In contrast, regulations connotes not an absolute prohibition but rather a limitation to speech for compelling state interest. An example would be prohibiting campaigning during the election day, hence all speech relating to campaigns is not banned but merely regulated on the day of election to ensure the integrity of elections.